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United States District Court, S.D. New York

September 1, 2004.

SHARON NIVEN, Plaintiff,
JO ANNE BARNHART, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: DENISE COTE, District Judge


On November 24, 2003, Sharon Niven ("Niven") filed this action pursuant to the Social Security Act, 42 U.S.C. § 405(g), to obtain review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability benefits. Niven has moved for judgment on the pleadings arguing that she is unable to perform even sedentary work and asking that the Commissioner's decision be reversed, or that the action be remanded for a new hearing. The Commissioner has cross-moved for judgment on the pleadings. For the reasons that follow, the decision of the Commissioner is affirmed. Page 2


  The following facts are taken from the administrative record. Niven was born June 30, 1956 and was 44 years olds at the alleged onset of her disability. She has a high school education and is the mother of two children. Niven worked as a bartender, which required the ability to stand for long periods of time and minimal lifting, until 1999 when the restaurant where she worked closed. Niven states that she did not seek further employment because of her back pain.

  Overview of Application History

  On February 7, 2002, Niven submitted an application for disability benefits and Supplementary Security Income to the Social Security Administration. Niven asserted that she had been disabled since March 1, 2001, due to back pain, migraine headaches and depression. The applications were denied and Niven filed a timely Request for Hearing. Niven appeared before Administrative Judge Newton Greenberg ("ALJ") on February 24, 2003. On April 16, 2003, the ALJ determined that Niven was able to "sit for 6 hours, stand for 2 hours and lift up to 10 pounds." The ALJ found, inter alia, that

  Medical evidence establishes that claimant is diagnosed with findings consistent with discogenic disorder of the lumbosacral spine and rule-out major depressive episode in partial remission,*fn1 but that she does not have an impairment or combination of impairments listed Page 3 in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4.*fn2 . . .


The claimant's statements regarding the severity of the alleged symptoms and degree of functional limitations are not credible. . . .
There is sufficient evidence to support the findings regarding the claimant's residual functional capacity at step five.*fn3 . . .
The claimant has mild limitation in activities of daily living; no limitation in social functioning; mild limitation in concentration, persistence or pace; and no documented episode of decompensation.
  The ALJ concluded that Niven was not disabled and "retains the residual functional capacity for unskilled, sedentary work." In July 2003, the Appeals Council denied Niven's request for review and the ALJ's decision became final.

  Medical History

  Niven's relevant medical history begins in June 2001, when she underwent an initial psychological assessment at the Bellevue Hospital Center ("Bellevue") for complaints of depression that surfaced after her husband left her and her three-year old son. An examination of June 21 and 28 showed that the plaintiff was cooperative and well-groomed. Her thought process and thought content were within normal limits. While Niven did not have any suicidal ideation, her mood was depressed. Niven told the examiner that she had been feeling better, but complained of Page 4 recent stress after a welfare agency visit. The examiner's diagnosis was: Axis I — major depression episode, rule out adjustment disorder; Axis II — deferred; Axis III — none; Axis IV — unemployment; and Axis V — 60.*fn4

  Niven again sought medical attention on July 19, 2001, where she reported that she was presently taking Celexa and was experiencing "minor" back pain. The examining physician's assessment was that she was suffering from anxiety, a migraine, and a urinary tract infection.

  Throughout 2001, Niven continued to seek medical treatment at Bellevue. On August 6, 2001, Niven reported increased lower back pain and depression, but that she was taking Celexa which gave her some relief from her depression. There was no evidence of bruises or trauma, no sensory deficit to the lower extremities, and strength and flexibility were normal. The physician's assessment was low back pain, questionably due to old trauma. Valium and Motrin were prescribed. On August 22, 2001, Niven returned to Bellevue complaining of severe left flank pain which was likely due to a kidney stone. A lumbar spine x-ray was within normal limits. On September 10, 2001, a CT-scan revealed no evidence of a kidney stone, and Niven told her physician that her pain had Page 5 subsided and she was able to tolerate her present discomfort without medication. She walked without discomfort and no deficit was observed in her gait.

  On October 19, Niven was assessed at Bellevue's pain treatment center. While Niven stated that she was not working because of "severe depression" and that walking or sitting in one position exacerbated her lower back pain, she indicated that she was able to perform activities of daily living and that she had a good response to Tylenol with codeine and hot showers. An examination revealed no reflex abnormalities or loss of motor function. Niven was diagnosed with lower back pain and referred to physical therapy.

  On November 2, Niven was seen at Bellevue's rehabilitation medicine service. Niven complained of back tenderness that was exacerbated by sitting and walking. She was found to have tight hamstrings and generalized palpable tenderness in the lumbar spine area. Niven performed a straight leg test normally and her lower extremities had normal strength. Niven was again diagnosed with lower back pain and the attending physician prescribed physical therapy.

  In an examination on November 5, 2001, a consulting physician, Dr. Clyde Weissbart concluded that Niven was able to perform sedentary activity with moderate limitations in activities involving sitting, standing, walking and lifting. On November 8, Niven was diagnosed with, among other things, low pack pain, anxiety, and depressive disorder. During an examination on December 10, 2001, Niven remarked that rehabilitation was helping Page 6 a lot, her condition was "much improved," and she was "happy." Niven was seen again at Bellevue's pain clinic on December 14, where she reported that therapy was helping, but she was still experiencing intermittent left, low back pain. During an examination two weeks later, Niven reported that her back discomfort increased with activity. She maintained normal motor strength and an intact sensory function. Niven could walk on her heels and toes and straight leg raising was negative. The attending physician' diagnosis was continuing low back pain.

  On February 7, 2002, Niven filed her application for benefits. At a February 8 examination, Niven reported that physical therapy had provided minimal relief. The examination again revealed that Niven could walk on her heels and toes and she had some paraspinal tenderness. Niven was instructed to return to physical therapy, and obtain treatment at an acupuncture clinic.

  In a report dated March 4, 2002, Dr. Katherine Mobisson, Niven's treating physician at Bellevue diagnosed Niven with a major depressive episode, lower back pain, and migraine headaches. The report revealed that Niven had participated in weekly psychotherapy since July 1, 2001, and was being treated with a stabilizing medicine called Effexor. While the report indicated that Niven had been unable to work due to psychiatric issues, the reporting physician noted that Niven would be stable enough in a few months to complete her vocational and educational services for individuals with disability ("VESID") program*fn5 and return to Page 7 gainful employment "for which she is motivated." Another March 4 report*fn6 stated that Niven was limited in her bending, stooping, and crouching. This report stated that Niven could perform "light, sedentary work," including lifting up to 15 pounds. Neither report precluded Niven from sedentary work activities.

  An examination of Niven on March 21 revealed that her sensation and reflexes were intact and a straight leg raising was normal. Her muscle strength was a 5 on a scale of 0 to 5.*fn7 An x-ray from August 2001 was reported as negative. Dr. Mario Mancheno conducted a consultative examination of Niven on May 8, 2002. During the examination Niven reported that she does her own cooking, shopping, and carrying. Niven reported that her pain was aggravated by sitting for more than three hours, standing for more than 60 minutes, and walking for more than 16 blocks. Acupuncture, Ultram, and rest helped relieve her symptoms. The examination revealed that Niven did not have difficulty rising from her chair, dressing and undressing. Niven also had no difficulty getting on and off the examination table, lying down, or walking toe/heel. Dr. Mancheno diagnosed Niven with findings consistent with discogenic disorder of the lumbosacral spine. Dr. Mancheno concluded that Niven had mild limitations in Page 8 lifting/carrying, pushing/pulling, standing/walking and sitting due to her lower back pain.

  On May 8, 2002, Dr. Renee Ravid conducted a psychiatric examination of Niven where she denied suicidal or homicidal ideation. She also claimed not to have experienced delusions or perceptual disturbances. Dr. Ravid diagnosed Niven with rule-out dysthymic disorder and rule-out major depressive episode in partial remission. Dr. Ravid concluded that Niven had some impairments in her ability to respond to a work environment and in sustaining concentration. Dr. Ravid also found that Niven had a "reduced tolerance to stress" and mood lability. Niven, however, had a satisfactory ability to understand, carry-out and remember instructions. Niven stated to Dr. Ravid that she had been approved for VESID and hoped to learn medical billing. On July 1, Dr. Ed Kamin, a non-examining physician, found that Niven's mental health presented no limitation in social functioning, or activities of daily living and only mild limitations in concentration and the ability to remember and carry out instructions.

  An MRI of Niven's cervical spine on July 16, 2002, revealed two small disc herniations. On August 30, Niven was seen at Bellevue's ambulatory surgery unit for complaints of back pain. The clinical determination was a herniated disc. An examination a month later in the ambulatory unit revealed that Niven's back was within normal limits.

  An October 1, 2002 examination revealed that her motor power for her upper and lower extremities was normal. There was no Page 9 mention of any limitations in the report documenting this examination. An October 1 psychiatric report diagnosed Niven with recurrent major depression and a GAF of 60. It was noted, however, that her mental status was "now improved" and the Niven was enrolled in VESID. The report concluded that Niven's condition did not restrict her activities of daily living and had only a "mild" impact on her social functioning. The report also stated that Niven's condition led to a deficiency in concentration and that she was intimidated by a "drill sergeant" instructor at VESID. Furthermore, the report noted that Niven was able to make occupational adjustments and respond appropriately to a supervisor, coworkers and customary work pressures. During subsequent examinations in November 2002 and January through March 2003, Niven continued to complain of lower back pain, but reported a positive response to the medication Vicodin. During this time, the findings of physical examinations did not significantly change — Niven suffered from chronic back pain but her bilateral motor function was normal and she ambulated well.


  In reviewing a decision of the Commissioner, a district court may "enter, upon the pleadings and transcript of the record a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for rehearing." 42 U.S.C. § 405(g). A court must uphold the Commissioner's decision unless it is not supported by substantial evidence or is based on an error of law, Curry v. Page 10 Apfel, 209 F.3d 117, 122 (2d Cir. 2000), "keeping in mind that it is up to the agency, and not this court, to weigh the conflicting evidence in the record," Clark v. Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir. 1998). Substantial evidence in this context means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran v. Barnhart, 362 F.3d 28, 31 n. 2 (2d Cir. 2004) (citation omitted). It is not the function of the reviewing court to determine de novo whether a claimant was disabled. Curry, 209 F.3d at 122.

  To be considered disabled under the Social Security Act, a claimant must demonstrate the "[i]nability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C § 423(d)(1)(A). Further, the claimant's impairment must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). The disability must be "demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 432(d)(3). The ALJ's decision must be guided by the appropriate legal standards. See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).

  The Social Security Administration employs a five-step process in making a disability determination. See Page 11 20 C.F.R. §§ 404.1520. The Second Circuit has summarized the procedure as follows:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" [that] significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment . . . listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work [that] the claimant could perform.
Apfel, 209 F.3d at 122 (citation omitted).

  In determining in connection with the fifth step whether the claimant can perform other work, the ALJ first determines whether the applicant retains the functional capacity for work-related activities. If the applicant is subject only to exertional,*fn8 or strength limitations, the ALJ then uses the medical-vocational Page 12 guidelines in 20 C.F.R. Part 404, Subpart P, Appendix 2 to cross-reference on a grid the applicant's residual capacity with his age, education, and work experience. The grid then yields a determination of whether there is work the applicant could perform in the national economy. Rosa, 168 F.3d at 78; see also Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).

  A claimant bears the burden of proof as to the first four steps, while the Commissioner bears the burden in the final step. Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). In employing this five-step process, the ALJ must consider four factors: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (citation omitted).

  The ALJ first determined that Niven had not engaged in substantial gainful activity since her alleged onset of disability. The ALJ next determined that the plaintiff has severe conditions, to wit, her back condition and depression, but not ones that are equivalent to listed impairments. At the third step of the five-step sequential evaluation, the ALJ found that Niven did not have an impairment that was equal in severity to one listed in Appendix 1 of 20 C.F.R. Part 404, Subpart P. At the fourth step, the ALJ found that Niven could perform unskilled, sedentary work, but not her past employment as a bartender. The ALJ then proceeded to the final step to determine what, if any, other work Niven could undertake. Employing the grid and Page 13 considering Niven's relative youth, high school education, vocational factors in combination with her residual functional capacity, the ALJ determined that there was other work she could perform in the national economy.

  The Commissioner's decision denying Niven disability benefits and Supplemental Security Income was supported by substantial evidence and did not contain legal error. Niven makes two arguments in favor of reversal. First, Niven contends that the ALJ and the Commissioner failed to address evidence that she "lacks the residual functional capacity for sedentary work" due to back pain. The Commission was presented with, and there is, substantial evidence that her back condition does not limit her ability to perform sedentary work.

  "Sedentary work is the least rigorous of the five categories of work recognized by SSA regulations." Curry, 209 F.3d at 123 (2d Cir. 2003) (citation omitted). The relevant Social Security regulations describe sedentary work as work that "involves lifting no more than 10 pounds at a time," "sitting," and "a certain amount of walking or standing," and occasionally lifting light objects. Halloran, 362 F.3d at 31 n. 2 (citing 20 C.F.R. § 404.1567(a)). Sedentary work involves the capacity to sit for "six hours in an eight-hour work day." Id. at 33; see also Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). Walking or standing should "generally total no more than about 2 hours of an 8-hour workday." Halloran, 362 F.3d at 33 (citation omitted) (emphasis in original). Social Security regulations regarding sedentary work do not require, however, that the applicant be able Page 14 to sit for "six unbroken hours." Id. As in the instant case, once an ALJ finds that a claimant has met the burden of proving that his impairment prevents him from performing his past work, the Commissioner bears the burden of proof that Niven can sit for the requisite number of hours each day. Curry, 209 F.3d at 123 n. 1. Evidence that a plaintiff is capable of participating in various activities of daily living despite allegations of severe pain can support a determination that a plaintiff can perform sedentary work. See Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980).

  As the ALJ noted and her medical history reflects, Niven's back pain was frequently diagnosed and described as "chronic," but "minor." Nearly all of the health professionals who examined Niven over the past three years found that her strength and flexibility were normal and that she walked without discomfort or a problematic gait. Niven showed virtually no signs of muscle atrophy or neurological abnormalities and straight leg raising tests were repeatedly negative. Niven's medical record only reflects a few instances where Niven herself reported difficulty sitting for long periods of time. In May 2002, Niven reported to Dr. Mancheno that her back pain was aggravated by sitting for more than three hours, standing for more than 60 minutes, and walking more than 16 blocks. An inability to sit without pain for more than three consecutive hours, however, does not prohibit a person from performing "sedentary work" as defined by Social Security regulations. Page 15

  In addition, Niven's medical record reflects that medicine, rehabilitation, and acupuncture were frequently effective in relieving her lower back pain. On October 19, 2001, Niven indicated that despite her lower back pain she was able to perform activities of daily living. In an April 20, 2002 report ("April 2002 Report") of her daily activities, Niven wrote that while she has pain when she sits, she uses public transportation, reads, and watches television. In the same report, Niven stated that she regularly shops, cooks, and cleans without assistance as well as that she swims and sits in a park. Niven also reported that she could walk for one to one and one-half hours before she would need to stop and rest and that she could walk 20-30 short blocks.

  No health professional who examined Niven over the past three years found that she was incapable of sedentary work involving six hours of sitting and two hours of standing. Indeed, in November 2001, Dr. Weissbart concluded that Niven was capable of performing sedentary activity with moderate limitations. A March 2002 report concluded that Niven would soon be stable enough to return to gainful employment and that Niven could perform "light, sedentary work" including lifting up to 15 pounds. In May 2002, Dr. Mancheno concluded the same thing — Niven only has mild limitations on lifting/carrying, pushing/pulling, standing/walking and sitting.

  Niven's second argument is that the ALJ erred in relying on the grid to determine whether there was sedentary work that she could perform since her impairments included a non-exertional component, to wit, her depression, which significantly diminished Page 16 her potential range of work. This argument must fail. The ALJ considered Niven's depression, determined it was not significant, and thus, properly relied on the grid in determining that she was capable of sedentary work.

  "[T]he mere existence of a non-exertional impairment does not automatically require the production of a vocational expert nor preclude reliance on the guidelines." Bapp v. Bowen, 802 F.2d 601, 603 (2d Cir. 1986). Sole reliance on the grids may be precluded, however, "where the claimant's exertional impairments are compounded by significant nonexertional impairments that limit the range of sedentary work that the claimant can perform." Rosa, 168 F.2d at 78; see also Pratts, 94 F.3d at 39 ("where the claimant's work capacity is significantly diminished beyond that caused by his exertional impairment the application of the grids is inappropriate"). A claimant's work capacity is "significantly diminished if there is an additional loss of work capacity that so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity." Pratts, 94 F.3d at 39 (citation omitted). When a claimant's non-exertional impairments significantly diminish her ability to work, "the Commissioner must introduce the testimony of a vocational expert (or other similar evidence) that jobs exist in the economy which claimant can obtain or perform." Id. (citation omitted).

  Here, the ALJ identified and considered Niven's non-exertional impairment, her depression, and based on substantial evidence determined that Niven's functional capacity for sedentary work was not significantly reduced by her mental health and Page 17 Niven's depression was not significant enough to require additional testimony as to potential employment opportunities. In his decision, the ALJ outlined and considered with sufficient detail the medical evidence regarding Niven's depression. Although the ALJ did not expressly state that Niven's depression was insignificant, the ALJ directly addressed the import and impact of this non-exertional impairment. In particular, the ALJ noted that Niven was reported to be "happy" during a December 28, 2001 examination. The ALJ also highlighted the March 4, 2002 report which stated that Niven could return to the VESID to facilitate her gainful employment, and the October 2002 report which noted that Niven's mental status had improved. In addition, the ALJ considered the medical evidence, including Dr. Ravid's May 2002 examination, that Niven did not have a significant impairment in her activities of daily living and was able to make occupational adjustments and respond appropriately to customary work pressures despite her mild limitations in concentration, persistence and pace. In evaluating the significance of Niven's mental health, the ALJ also highlighted Niven's expressed desire to learn medical billing and the April 2002 Report in which Niven set forth the multitude of activities in which she engages, including seeing her friends for lunch and spending time with her daughter.*fn9 Page 18

  Niven contends that the ALJ did not take into consideration some evidence that she claims shows that her depression significantly impaired her ability to work. In particular, Niven points to her visit to Bellevue on June 7, 2001, Dr. Mobisson's March 4, 2002 report, and Dr. Ravid's and Dr. Kamin's reports, as containing evidence regarding Niven's mental health that the ALJ failed to properly assess. This contention is unavailing. With the exception of the Dr. Kamin's report,*fn10 the ALJ did take into consideration and evaluate this evidence and medical history, including portions that seemed to contradict the ALJ's ultimate findings. While the ALJ choose not to credit Niven's statements regarding the severity of her injury and did not expressly outline all the evidence regarding Niven's mental health, it is well-settled that the ALJ is not required to "reconcile explicitly every conflicting shred of medical testimony." Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983); see also Clark, 143 F.3d at 118 ("it is up to the agency, and not this court, to weigh the conflicting evidence in the record"); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir. 1984) (the ALJ's credibility determination is subject to deference). Page 19


  Niven's motion for a judgment on the pleadings is denied. The Government's cross-motion for judgment on the pleadings is granted. The Clerk of Court shall close the case.


 *fn11 The essential feature of a major depressive episode "is a period of at least two weeks during which there is either depressed mood or the loss of interest or pleasure in nearly all activities." See 26 Am. Jur. Proof of Facts 3d 1 (2003).

 *fn12 Appendix 1, Subpart P, Regulations No. 4 is a list of "per se disabling" impairments. If a claimant's injuries are found to be a "per se disabling" impairment, then the claimant is disabled within the meaning of the Social Security Act.

 *fn13 As discussed infra, at the fifth step in evaluating whether a claimant is disabled for the purposes of the Social Security Act, the ALJ makes a determination if there is some type of work a claimant can perform.

 *fn14 The DSM-IV multiaxial scale assesses an individual's mental and physical condition on five axes, each of which addresses distinct areas. Axis I refers to clinical disorders; Axis II refers to developmental and personality disorders; Axis III refers to general medical conditions; Axis IV refers to psychosocial and environmental problems; and Axis V describes the individual's global assessment of functioning ("GAF"). Diagnostic and Statistical Manual of Mental Disorders 27 (4th ed. text rev. 2000). A GAF of 60 reflects the highest range of functioning within moderate symptoms of deficiencies in social, occupational, or school functioning.

 *fn15 VESID is operated by the New York State Department of Education and provides vocational rehabilitation. See

 *fn16 It is unclear which physician at Bellevue wrote this March 4 report. The Commissioner contends that Dr. Mobisson is responsible for this report, but the document contains a stamp indicating that it was compiled by a "medical records physician," and not Dr. Mobisson.

 *fn17 Muscle strength is usually graded on a scale of 0 to 5, ranging from no movement (0) to normal movement (5). See The Merck Manual of Diagnosis and Therapy, 1347 (17th ed. 1999).

 *fn18 Exertional and non-exertional limitations are defined as follows:

An exertional limitation is a limitation or restriction imposed by impairments and related symptoms, such as pain, that affect only a claimant's ability to meet the strength demands of jobs (i.e., sitting, standing, walking, lifting, carrying, pushing, and pulling). A nonexertional limitation is one imposed by the claimant's impairments that affect her ability to meet the requirements of jobs other than strength demands, and includes manipulative impairments and pain.
Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999) (citation omitted).

 *fn19 While Niven stated in the April 2002 Report that she was depressed and "stress sometimes get to me," she reported that she had no difficulty paying attention, finishing tasks that she starts, and getting along with people in authority. Niven also wrote that she can follow spoken and written instructions.

 *fn20 With respect to Dr. Kamin, a non-examining consulting psychologist, his report, if anything, lends support to the ALJ's conclusion that Niven's mental condition did not so narrow her possible range of work as to deprive her of a meaningful employment opportunity. Dr. Kamin found that Niven had no limitations in activities of daily living. Dr. Kamin also found that Niven was not significantly limited in most of the categories of work function considered by the Social Security Administration. In addition, as noted by Niven herself in her moving papers, to the extent that Dr. Kamin indicated that, among other things, Niven was moderately limited in her capacity to remember and carry out detailed instructions, his report provided no explanation or actual medical evidence for his findings.


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